Tyrone Rogers v. G. Giurbino , 625 F. App'x 779 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TYRONE ROGERS, No. 13-55527
Plaintiff - Appellant, D.C. No. 3:11-cv-00560-IEG-RBB
v.
MEMORANDUM*
G. J. GIURBINO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted July 7, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
Tyrone Rogers, an inmate at Centinela State Prison, filed a complaint for
injunctive relief and damages, alleging infringement of several constitutional rights
under both 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq. (“RLUIPA”). The district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissed several of Rogers’s § 1983 claims under 28 U.S.C. § 1915(e)(2)(B)(ii)
and others under Federal Rule of Civil Procedure 12(b)(6), all of which he
challenges on appeal. Rogers also challenges the district court’s grant of summary
judgment in favor of Defendant P. Kuzil-Ruan on his RLUIPA claim. His claims
arose from three ten-day emergency lockdowns, and rolling lockdowns connected
to a statewide staff reduction plan. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm in part, reverse in part, vacate in part, and remand for further
proceedings.
1. Rogers’s outdoor exercise and access to courts claims were dismissed under
28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo a dismissal under §
1915(e)(2)(B)(ii), applying the same standard used to evaluate motions to dismiss
under Rule 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
A complaint will survive a motion to dismiss “only if, taking all well-pleaded
factual allegations as true, it contains enough facts to ‘state a claim to relief that is
plausible on its face.’” Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). However, even after Iqbal
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we “continue to construe
pro se filings liberally.” Id. at 342.
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2. We affirm the district court’s dismissal of Rogers’s Eighth Amendment
outdoor exercise claim because the allegations in the Second Amended Complaint
(“SAC”) are insufficient to state a claim for relief. To sustain such a claim, a
plaintiff “must meet two requirements, one objective and one subjective.” Allen v.
Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer v. Brennan, 511 U.S. 825
(1994)). Under the objective requirement, “the prison official’s acts or omissions
must deprive an inmate of the minimal civilized measure of life’s necessities.” Id.
(internal quotation marks omitted). “The subjective requirement, relating to the
defendant’s state of mind, requires deliberate indifference.” Id. Rogers’s
allegations that he was denied outdoor exercise for ten consecutive days three
times, and one day every two or four days otherwise, are insufficient to satisfy
either prong of an Eighth Amendment claim. See, e.g., May v. Baldwin, 109 F.3d
557, 565-66 (9th Cir. 1997); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1212-13
(9th Cir. 2008) (as amended).
3. We also affirm the district court’s dismissal of Rogers’s access to courts
claim. Allegations of a backward-looking access to courts claim must include facts
about the underlying “lost” cause of action, including the lost remedy, and “the
official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415-
16 (2002). Examples of such a “loss” include the “loss or inadequate settlement of
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a meritorious case,” “the loss of an opportunity to sue,” or “the loss of an
opportunity to seek some particular order of relief.” Id. at 414. Here, there was no
lost opportunity or actual injury stemming from the allegations in the SAC.
Rogers alleged that he mailed his application for leave to file a second or
successive petition—the filing at issue—with the Ninth Circuit on July 29, 2010.1
That petition was denied on January 12, 2011 for failure to make a prima facie
showing under 28 U.S.C. § 2244(b)(2). Thus, Rogers did not lose an opportunity
to sue or request relief based on an inability to file timely. Further, Rogers did not
allege that he had insufficient time to complete the filing, or that with more time
the petition for leave to file a second or successive habeas petition would have
been meritorious.
4. Reviewing de novo, we reverse the district court’s Rule 12(b)(6) dismissal
of Rogers’s First Amendment claim. The SAC sufficiently alleges Rogers’s
sincerely held religious beliefs. See Walker v. Beard, 789 F.3d 1125, 1138 (9th
Cir. 2015). Defendants did not show that Rogers’s allegations in the SAC
1
We take judicial notice of the Ninth Circuit docket and documents filed in
Case No. 10-73249, the habeas proceeding referenced by Rogers in his SAC. See
United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (recognizing that under
Federal Rule of Evidence 201, a court may take judicial notice of its own records
in other cases). According to the docket for Case No. 10-73249, the application for
leave to file a second or successive petition was filed with this court on October 22,
2010.
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demonstrate that the challenged actions “reasonably related to legitimate
penological interests” under the factors outlined in Turner v. Safley, 482 U.S. 78,
89-91 (1987). See Walker, 789 F.3d at 1138. This issue is best resolved at
summary judgment or at trial, if necessary. Further, the district court improperly
relied on Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002), for the proposition
that, where a common-sense connection exists between an asserted penological
interest and the policy or action at issue, a district court need not analyze the other
three Turner factors. See, e.g., Shakur v. Schriro, 514 F.3d 878, 885-88 (9th Cir.
2008) (remanding for further factual development after analyzing all four Turner
factors where a rational nexus existed between a prison’s dietary policies and its
“legitimate administrative and budgetary concerns”); Thornburgh v. Abbott, 490
U.S. 401, 414-18 (1989) (finding a connection, and then discussing the second,
third, and fourth Turner factors). Indeed, Whitmire stated that a dismissal on the
pleadings is “appropriate only when” a common-sense connection exists, and
reversed the dismissal because there was no such connection in that case.
Whitmire, 298 F.3d at 1136 (emphasis added). Whitmire did not hold that
dismissal is always appropriate when such a connection exists, without regard to
the other Turner factors.
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5. We vacate the district court’s dismissal of Defendant G.J. Giurbino and
Defendant Domingo Uribe, Jr. in their individual capacities. Rogers’s allegations
of causation as to these two defendants are insufficient in light of Iqbal, 556 U.S.
at 677-78. However, the record demonstrates that Rogers may be able to correct
these deficiencies in an amended complaint. See Kuzil-Ruan’s Declaration, filed
on November 13, 2012. On remand, Rogers may request leave to amend his
complaint regarding Giurbino and Uribe.
6. The allegations are sufficient to support a claim against Giurbino and Uribe
in their official capacities. Rogers alleged that the staff reduction plan was
implemented “in order to obtain a 3% salary saving via Califs [sic] financial
deficit,” meaning the State of California was the alleged “moving force” behind
Rogers’s injuries. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal
quotation marks omitted). Assuming the allegations in the SAC are true,
California’s policy would have played a role in violating Rogers’s constitutional
rights. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus, Rogers alleged facts
sufficient to pursue a cause of action for injunctive relief against Giurbino and
Uribe in their official capacities.
7. In the district court, Defendants argued in their motion to dismiss that they
were entitled to qualified immunity. Because the court dismissed Rogers’s First
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Amendment claim and all claims against Giurbino and Uribe, it did not address
whether Giurbino and Uribe are entitled to qualified immunity, or whether Kuzil-
Ruan is entitled to qualified immunity on Rogers’s First Amendment claim. On
remand, the district court should address these issues in the first instance.2
8. We review de novo a district court’s decision to grant summary judgment.
See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). Applying
that standard, we reverse the district court’s grant of summary judgment to Kuzil-
Ruan on Rogers’s RLUIPA claim for injunctive relief only. See Wood v. Yordy,
753 F.3d 899, 901 (9th Cir. 2014). Contrary to Kuzil-Ruan’s contention, there is a
genuine issue of material fact as to whether defendants substantially burdened
Rogers’s religious exercise. See Walker, 789 F.3d at 1134. To defeat a RLUIPA
claim, the government must demonstrate that any substantial burden on a
plaintiff’s exercise of his religion “(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). For the least
2
To the extent that Rogers alleged any freestanding Fourteenth Amendment
claim, we affirm the district court’s dismissal. The SAC does not allege any
“intent or purpose to discriminate against [Rogers] based on membership in a
protected class,” an essential allegation of an equal protection claim, Barren, 152
F.3d at 1194 (citing Washington v. Davis, 426 U.S. 229, 239-40 (1976)), or any
protected interest that Defendants allegedly violated that could support a due
process claim, Ingraham v. Wright, 430 U.S. 651, 672 (1977).
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restrictive means prong, “[p]rison officials must show that they ‘actually
considered and rejected the efficacy of less restrictive measures before adopting
the challenged practice.’” Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir.
2008) (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005)). By
contrast, Kuzil-Ruan and her successors, all former Facility Captains at Centinela,
explained in their declarations that, for each day of a lockdown, they considered
only whether group worship was possible, and then concluded that it was necessary
to limit religious services to in-cell only. There was no evidence that anyone
“ever considered a less restrictive approach.” Warsoldier, 418 F.3d at 999.
Furthermore, there exists “a factual dispute as to . . . the existence of less restrictive
alternatives,” which renders summary judgment inappropriate. Shakur, 514 F.3d at
891. The record suggests that group religious services could have been scheduled
during the lockdowns, as several inmates at a time were allowed out of their cells
for other reasons. For these reasons, we reverse the district court’s grant of
summary judgment and remand for further proceedings.
9. Before this court, Defendants argued that Rogers’s claim for injunctive relief
is moot. However, the present record is inadequate for us to make that
determination. As this argument also implicates whether injunctive relief would be
8
proper here under the changed circumstances as argued by Defendants, the district
court should examine both of these related issues on remand.
10. Finally, Rogers raised on appeal the district court’s failure to enforce its
order granting his motion to compel discovery against Kuzil-Ruan. The district
court adopted a magistrate judge’s report and recommendations granting in part
Rogers’s motion to compel discovery six days after Rogers filed his opposition to
Kuzil-Ruan’s motion for summary judgment, and two months after discovery
closed. On remand, the district court should allow Rogers the benefit of its grant
of his motion to compel discovery.
11. Each party shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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